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Tuesday, May 8, 2018

Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer. 29. Though, the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer.- the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal 16 to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 273 OF 2007
Arif Khan @ Agha Khan ... Appellant(s)
Versus
State of Uttarakhand ... Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed by the accused against the
final judgment and order dated 26.06.2006 passed
by the High Court of Uttaranchal at Nainital in
Criminal Appeal No.368 of 2004 whereby the High
Court confirmed the judgment and order dated
09.11.2004 passed by the Additional Sessions
Judge, Fast Track Court II, Udham Singh Nagar in
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Special Sessions Trial No.20 of 2003 by which the
appellant-accused was convicted for the offence
punishable under Section 20 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter
referred to as “the NDPS Act”) and sentenced him to
undergo rigorous imprisonment for 10 years and a
fine of Rs.1,00,000/-.
2. In order to appreciate the issue involved in the
appeal, few facts need to be mentioned hereinbelow.
3. In short, the case of the prosecution is as
under:
4. On 23.11.2002, a secret information was
received in P.S. Kichha from one unknown
informant that one person is travelling in a
roadways bus carrying with him some contraband
articles. The secret informant also gave information
that the person concerned would get down near the
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railway crossing from the Bus and would approach
towards a place called “Chowki Pul Bhatta” along
with contraband article.
5. The raiding party headed by SHO-Harish
Mehra, who was on duty at P.S. Kichha along with
the police officials on duty accordingly left for the
place informed by the informant.
6. On reaching the informed place, the raiding
party waited for sometime and thereafter spotted
the person concerned, who was approaching
towards the place informed to them. The raiding
party intercepted the person concerned.
7. Thereafter, the accused was asked by the
police personnel of raiding party as to whether he is
in possession of contraband “Charas”. The accused
admitted that he is in possession of “Charas”. On
apprehending the accused, he was informed by the
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police personnel that he has a legal right to be
searched in the presence of a Gazetted Officer or a
Magistrate to which the accused replied that he has
a faith on the raiding police party and consented to
be searched by them.
8. The raiding police party accordingly obtained
his consent in writing to be searched by the raiding
police party. The raiding police party then searched
the accused which resulted in seizure of “Charas”
weighing around 2.5 K.G. in quantity from his body.
9. It is this incident, which gave rise to
prosecution of the appellant (accused) for
commission of the offence punishable under Section
20 of the NDPS Act in Special Sessions Trial
No.20/2003. After investigation, the prosecution
filed the charge sheet (Ex- 11) against the appellant
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and examined 5 witnesses to bring home the charge
levelled against the appellant.
10. By order dated 09.11.2004, the Additional
Sessions Judge/ Fast Track Court II, Udham Singh
Nagar held that the prosecution was able to prove
the case beyond reasonable doubt against the
appellant and accordingly convicted him for the
offences punishable under Section 20 of the NDPS
Act and sentenced him to undergo rigorous
imprisonment for 10 years and a fine of
Rs.1,00,000/-.
11. The accused felt aggrieved and filed appeal in
the High Court at Nainital. By impugned judgment,
the High Court dismissed the appeal and upheld the
order of Additional Sessions Judge, which has given
rise to filing of the present appeal by the accused by
way of special leave in this Court.
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12. Heard Mr. J.C. Gupta, learned senior counsel
for the appellant (accused) and Mr. Ashutosh
Kumar Sharma, learned counsel for the
respondent-State.
13. Learned counsel for the appellant (accused)
while assailing the legality and correctness of the
impugned judgment contended that both the Courts
below erred in holding the appellant guilty of
commission of the offence in question and thus
erred in convicting him for the alleged offence under
the NDPS Act.
14. Learned counsel contended that the
prosecution has failed to ensure mandatory
compliance of Section 50 of the NDPS Act inasmuch
as the alleged recovery/search of the contraband
(Charas) made by the raiding police party from the
appellant's body was not done in accordance with
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the procedure prescribed under Section 50 of the
NDPS Act which according to learned counsel is
mandatory as held by this Court in the case of
Vijaysinh Chandubha Jadeja vs. State of Gujarat,
2011(1) SCC 609.
15. Learned counsel urged that the
search/recovery of the alleged contraband from the
appellant ought to have been made only in the
presence of either a Magistrate or a Gazetted Officer
only.
16. It was urged that since admittedly the
prosecution did not make the search/recovery from
the appellant in the presence of a Magistrate or a
Gazetted Officer and, therefore, the alleged recovery
of the contraband “Charas” from the appellant is
rendered illegal being in contravention of
requirements of Section 50 of the NDPS Act thereby
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entitling the appellant for an acquittal from the
charges.
17. In reply, learned counsel appearing for the
respondent (State) supported the reasoning and
conclusion arrived at in the impugned judgment
and, therefore, prayed for upholding of the
impugned judgment.
18. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeal and while setting
aside of the impugned judgment acquit the
appellant from the charges in question.
19. The short question which arises for
consideration in the appeal is whether the
search/recovery made by the police officials from
the appellant (accused) of the alleged contraband
(charas) can be held to be in accordance with the
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procedure prescribed under Section 50 of the NDPS
Act.
20. In other words, the question that arises for
consideration in this appeal is whether the
prosecution was able to prove that the procedure
prescribed under Section 50 of the NDPS Act was
followed by the Police Officials in letter and spirit
while making the search and recovery of the
contraband “Charas” from the appellant (accused).
21. What is the true scope and object of Section 50
of the NDPS Act, what are the duties, obligation and
the powers conferred on the authorities under
Section 50 and whether the compliance of
requirements of Section 50 are mandatory or
directory, remains no more res integra and are now
settled by the two decisions of the Constitution
Bench of this Court in State of Punjab vs. Baldev
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Singh (1999) 6 SCC 172 and Vijaysinh Chandubha
Jadeja (supra).
22. Indeed, the latter Constitution Bench decision
rendered in the case of Vijaysinh Chandubha
Jadeja (supra) has settled the aforementioned
questions after taking into considerations all
previous case law on the subject.
23. Their Lordships have held in Vijaysinh
Chandubha Jadeja (supra) that the requirements of
Section 50 of the NDPS Act are mandatory and,
therefore, the provisions of Section 50 must be
strictly complied with. It is held that it is imperative
on the part of the Police Officer to apprise the
person intended to be searched of his right under
Section 50 to be searched only before a Gazetted
officer or a Magistrate. It is held that it is equally
mandatory on the part of the authorized officer to
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make the suspect aware of the existence of his right
to be searched before a Gazetted Officer or a
Magistrate, if so required by him and this requires a
strict compliance. It is ruled that the suspect person
may or may not choose to exercise the right
provided to him under Section 50 of the NDPS Act
but so far as the officer is concerned, an obligation
is cast upon him under Section 50 of the NDPS Act
to apprise the suspect of his right to be searched
before a Gazetted Officer or a Magistrate. (See also
Ashok Kumar Sharma vs. State of Rajasthan,
2013 (2) SCC 67 and Narcotics Control Bureau vs.
Sukh Dev Raj Sodhi, 2011 (6) SCC 392)
24. Keeping in view the aforementioned principle
of law laid down by this Court, we have to examine
the question arising in this case as to whether the
prosecution followed the mandatory procedure
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prescribed under Section 50 of the NDPS Act while
making search and recovery of the contraband
“Charas” from the appellant and, if so, whether it
was done in the presence of a Magistrate or a
Gazetted Officer so as to make the search and
recovery of contraband “Charas” from the appellant
in conformity with the requirements of Section 50.
25. In our considered view, the evidence adduced
by the prosecution neither suggested and nor
proved that the search and the recovery was made
from the appellant in the presence of either a
Magistrate or a Gazetted Officer.
26. It is the case of the prosecution and which
found acceptance by the two Courts below that
since the appellant (accused) was apprised of his
right to be searched in the presence of either a
Magistrate or a Gazetted Officer but despite telling
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him about his legal right available to him under
Section 50 in relation to the search, the appellant
(accused) gave his consent in writing to be searched
by the police officials (raiding party), the two Courts
below came to a conclusion that the requirements of
Section 50 stood fully complied with and hence the
appellant was liable to be convicted for the offence
punishable under the NDPS Act.
27. We do not agree to this finding of the two
Courts below as, in our opinion, a search and
recovery made from the appellant of the alleged
contraband “Charas” does not satisfy the mandatory
requirements of Section 50 as held by this Court in
the case of Vijaysinh Chandubha Jadeja (supra).
This we say for the following reasons.
28. First, it is an admitted fact emerging from the
record of the case that the appellant was not
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produced before any Magistrate or Gazetted Officer;
Second, it is also an admitted fact that due to the
aforementioned first reason, the search and
recovery of the contraband “Charas” was not made
from the appellant in the presence of any Magistrate
or Gazetted Officer; Third, it is also an admitted fact
that none of the police officials of the raiding party,
who recovered the contraband “Charas” from him,
was the Gazetted Officer and nor they could be and,
therefore, they were not empowered to make search
and recovery from the appellant of the contraband
“Charas” as provided under Section 50 of the NDPS
Act except in the presence of either a Magistrate or
a Gazetted Officer; Fourth, in order to make the
search and recovery of the contraband articles from
the body of the suspect, the search and recovery
has to be in conformity with the requirements of
15Section 50 of the NDPS Act. It is, therefore,mandatory for the prosecution to prove that thesearch and recovery was made from the appellant inthe presence of a Magistrate or a Gazetted Officer.29. Though, the prosecution examined as many asfive police officials (PW-1 to PW-5) of the raidingpolice party but none of them deposed that thesearch/recovery was made in presence of anyMagistrate or a Gazetted Officer.
30. For the aforementioned reasons, we are of
the considered opinion that the prosecution was notable to prove that the search and recovery of thecontraband (Charas) made from the appellant wasin accordance with the procedure prescribed underSection 50 of the NDPS Act. Since thenon-compliance of the mandatory procedureprescribed under Section 50 of the NDPS Act is fatal16to the prosecution case and, in this case, we havefound that the prosecution has failed to prove thecompliance as required in law, the appellant isentitled to claim its benefit to seek his acquittal.
31. In the light of the foregoing discussion, the
appeal succeeds and is allowed. Impugned
judgment is set aside. As a consequence thereof, the
appellant's conviction is set aside and he is
acquitted of the charges in question.